The only explanation for the change--i.e., that "[t]he Commission believes that a two-year period will give the Commission sufficient information to identify discriminatees while not unduly burdening respondents"--reflects no appreciation of the volume or cost of the additional records that would be required. The Commission's further assertion that this two-year period "proved workable with respect to entities controlling apprenticeship programs" fails to recognize that such apprentice records are few in comparison with data dealing with employment actions for the employer's entire work force. Because of the substantial cost the proposed changes would impose on employers, many of which would have to acquire the personnel, filing and computer capabilities to process between 100,000 and 200,000 applications each year, the Commission should at a minimum prepare a Regulatory Analysis in order to comply with Section 3 of Executive Order 11246.8/ " Further, the proposed chronological list of applicants is duplicative and unnecessary, as applicant flow data now are maintained to assure compliance with Executive Order 11246. Revised Order 14 (para. III A&B), 41 C.F.R. 60-1.40 (b) (2), 60-2.12 (1), 60-2.23 (a)(2), (3), and (4), and 60-2.24 (d) and (e) all require that applicant flow data be maintained. Moreover, Paragraph III.E of Revised Order 14 requires an analysis "showing the reasons for the rejection of applicants for total and by appropriate race and sex groups for each job group.' Rather than requiring that existing applicant flow data be reshuffled into a format that has no real enforcement or business value, proposed Section 1602.13 should be amended to provide that applicant flow logs maintained under Executive Order 12044 would satisfy EEOC's recordkeeping regulations. Such an amendment would be consistent with Section 1-301 (b) of Executive Order 12067 and allow EEOC to properly carry out its assigned mission of coordinating the development of uniform standards and procedures. 8. This also would be consistent with the proposed rules of 36-804 - 79 - 34 EEOC's Proposed Guidelines For Remedial/Affirmative Action Some time ago the Commission issued proposed "reverse discrimination" guidelines in response to the need for elimination of the dilemma faced by employers who must subject themselves to potential liability to nonminority or male employees because of good faith attempts to comply with the requirements found in statutes, executive orders and other government directives intended to prevent discrimination against minorities and women. Although the final guidelines have not yet issued, experience demonstrates that major changes from the proposed version are unlikely. Consequently, we expect the final regulations will attempt to resolve the dilemma outlined above by purporting to establish a legal standard whereby EEOC could dismiss "reverse discrimination" charges if an employer could demonstrate that it had a reasonable basis for concluding that it might be subject to Title VII liability and then took remedial affirmative action to avoid that liability. Despite its intention to assist employers by providing clarification, the Commission's guidelines pose more problems than they resolve. The solution proposed mirrors the dissenting opinion in Weber v. Kaiser,9/ the only Federal court of appeals decision yet to address the question of an employer's "reverse discrimination" liability for voluntary compliance with affirmative action goals. Consequently, if the Fifth Circuit's opinion in Weber stands, the guidelines would be of questionable authority. As proposed, the guidelines are of negligible value to employers anyway, inasmuch as they merely assure employers that they will not be sued by the EEOC. They would not similarly bind private plaintiffs who bring suits in Federal court. Ironically, once the Commission dismisses a "reverse discrimination" charge, it would then be required by Section 706 (f) (1) of Title VII to issue a right to sue notice which could then trigger a private court suit. Because of the unsettled state of the law in this area and because past precedent indicates that courts hearing such suits will not be required to adopt the EEOC's policy interpretations 9. 571 F.2d 337, 17 FEP Cases 347 (5th Cir. 1978), pets. for cert. pending, Nos. 78-432, 78-433, 78-436. 10/ on these issues, the validity of the proposed guidelines and the authority of the Commission to issue them is questionable.11/ Moreover, inasmuch as the guidelines would permit individual employer affirmative action even when there is no evidence sufficient to prove the employer violated Title VII, and before there is a related finding of discrimination "by judicial, legislative, or administrative bodies with competence to act in this area," it is also questionable whether the proposed guidelines comply with the standards established in The Regents of the University of California v. Bakke, 98 S. Ct. 2733, 2757-2758, 2766 (1978) (Opinions of Justices Powell, Brennan, et al.). At a minimum the questions raised above should be addressed by EEOC before the guidelines are issued in final form. Respectfully submitted, Jennille C. M Huenen Kenneth C. McGuiness 10. EEOC regulations do not have the force and effect of law 11. Employers relying upon the proposed guidelines as a defense |